Legal thoughts, since 2005.

This week's Daily Record column is entitled "The courts on mobile devices in the courtroom ." My past Daily Record articles can be accessed here.

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The courts on mobile devices in the courtroom

In 2007, the iPhone was launched. Thus began the mobile revolution. Now, 8 years later, 77 percent of lawyers use smartphones for law-related tasks, according to the results of the American Bar Association’s 2014 Legal Technology Survey Report. This, even though lawyers are traditionally slow to incorporate new technologies into their work flows. Mobile devices have been the exception, however, and lawyers have latched onto them and embraced them from the very start.

The courts have been much slower in their response to, and acceptance of, mobile tools, as evidenced by the recent policy on mobile device use by lawyers promulgated by the United States Fifth Circuit. As Jeff Richardson recently reported on his blog, iPhone J.D., the federal court recently released new rules, which were approved on Jan. 15, and impose fairly strict limitations on mobile device usage by lawyers appearing in Fifth Circuit courtrooms.

Importantly, the rules require that smartphones and tablets be turned off completely at all times, except when an attorney is presenting an oral argument before the court or is sitting at the counsel table. Even then, the devices can only be used for limited purposes and lawyers are expressly forbidden from using cameras or other recording devices and may not use social media while in the courtroom.

The new policy in its entirety is as follows:

POLICY ON ADMITTANCE OF ELECTRONIC DEVICES INTO THE JOHN MINOR WISDOM UNITED STATES COURT OF APPEALS BUILDING

A. Cameras and recording devices are not permitted in the John Minor Wisdom United States Court of Appeals Building (“Building”) without the court permission. Laptops, tablets, cell phones, and other similar devices that contain cameras or recording functions are exempt from this subsection but are still subject to (B)—(D).

B. After visual inspection and X-ray by a Court Security Officer, electronic devices may be admitted into the Building.

C. Unless prior court permission is obtained, all electronic devices must be turned off (not “vibrate-only” mode or airplane mode) when inside a courtroom where a Fifth Circuit argument is being held. However, an attorney presenting argument or assisting at counsel table may use a laptop, tablet, or similar device. If the laptop, tablet, or similar device has a camera or recording device, those functions may not be used inside the courtroom. At no time may anyone use social media inside a courtroom.

D. Under no circumstances will disruptive behavior be tolerated in any courtroom where a Fifth Circuit argument is being held. Violators will be promptly removed.

This policy, while very restrictive, is more expansive than other jurisdictions. For example, Maryland State Court Rules explicitly forbid the use electronic devices in a courtroom absent express permission from the sitting judge.

Of course, there are also courts that are more liberal in their view toward lawyers using these devices in the courtroom, such as the Vermont Supreme Court Rule, which allows lawyers to use mobile devices while presenting to the court and while waiting for their cases to be called, as long as the devices are in “silent mode” and aren’t used for oral communication. Other forms of communication are acceptable, such as texting, as long as the judge has not prohibited said use.

A partial list of the rules promulgated by different courts across the country on these issues can be found at the National Center for State Courts Website. According to this list, 12 state courts have addressed the use of mobile devices in the courtroom, along with six federal courts, not including the Fifth Circuit, as discussed above.

In other words, many jurisdictions have yet to issue policies regarding the use of mobile devices in the courtroom despite the proliferation of these devices and their wide scale use by both lawyers. Hopefully the courts will catch up with the times sooner, rather than later. After all, lawyers rely on mobile tools to help them practice law more efficiently, allowing them to present their clients’ cases with greater clarity and simplicity. So allowing them to use these devices while in court will benefit not just their clients, but also the judges and the court system as a whole.

This week's Daily Record column is entitled "Fire at Buffalo firm proves value of digital storage." My past Daily Record articles can be accessed here.

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Fire at Buffalo firm proves value of digital storage

Last week, a fire broke out in a high rise building in downtown Buffalo. The fire originated on the 15th floor of the building where a law firm was located. Unfortunately for the law firm, the fire and the subsequent efforts of the firefighters to extinguish it caused a sequence of events that resulted in every lawyer’s nightmare: the disclosure of confidential files.

As reported in a WIVB.com article about the incident, the windows to the building were blown out, causing confidential client documents to rain onto the city street below: “According to the Buffalo fire commissioner, a slew of legal files, some of which may contain private information, are flying around the streets of Buffalo after a fire broke out on the 15th floor of Main Place Tower in Buffalo … The documents are all old case files from closed cases, but could contain sensitive information many customers of (the law firm) might not want prying eyes to see.”

All of this could have been prevented if this particular firm had gone paperless. Had all of their client files been converted to digital documents and stored in the cloud on servers located offsite, the end result would have been simply damaged equipment, but not the release of confidential client files onto the streets of downtown Buffalo.

That’s the beauty of the offsite storage of digital documents: Your law firm’s data is housed in a secure cloud environment and protected from onsite physical damage. In fact, that’s one of the biggest benefits of cloud storage; it provides one of the best forms of disaster backup available.Specifically, it is the design of the newly built, cutting edge, cloud computing data centers that makes all the difference. Storing your firm’s data in the cloud ensures that even in the face of disaster, built-in redundant data backup — where data is regularly backed up to multiple servers located in different geographical regions — will save the day.

The reason this is such a selling point for cloud computing is because it’s impossible to predict when you might lose access to your office, whether because of a natural disaster or otherwise.

For example, a few years ago I spoke on a panel about cloud computing for the New York State Bar Association and one of my co-panelists was a NYC lawyer who switched his firm over to cloud computing after losing access to the servers housed in his law firm’s office, which was located in the Empire State Building. He explained that building management advised tenants on a Friday that power would be out all weekend for scheduled maintenance. That meant that he was unable to remotely access his firm’s data for the entire weekend. Shortly after that happened, he moved his firm’s data to the cloud and hasn’t looked back.

Now, his law firm, just like other businesses who store their data in the cloud, has a built-in disaster plan in effect. If the Buffalo law firm had taken similar steps to ensure the security and safety of their client files, they wouldn’t be in the unfortunate position they found themselves in last week.So learn from that firm’s mistakes. Research the technology options available and then carefully take steps to move your firm to a paperless environment, thus enhancing the security, flexibility and mobility of your firm. By doing so you’ll make it easier than ever to preserve and access your firm’s securely stored data, no matter what the circumstances – even in the face of a fire or other disaster.

This week's Daily Record column is entitled "Lawyers, social media evidence and discovery obligations." My past Daily Record articles can be accessed here.

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Lawyers, social media evidence and discovery obligations

If you’re a litigator, you know as well as I do how important social media evidence has become in recent years. Social media sites are virtual treasure troves of useful data and obtaining access to that information can be vital to mounting a successful case.

That’s why so many lawyers are now routinely requesting access to social media accounts during litigation. The problem is that since this type of evidence is such new phenomenon, it’s often unclear what lawyers’ obligations are when it comes to preserving social media data or turning it over during the course of discovery.

Two recent cases are instructive in this regard. First, there’s the proposed advisory ethics opinion issued by the Florida Bar in January, Proposed Advisory Opinion 14-1. At issue in this case was whether lawyers can, prior to litigation being initiated, advise clients to “clean up” their social media pages.

First, the committee concluded that a lawyer may ethically advise clients to change the privacy settings on their social media accounts to the highest levels of privacy, making it so that the pages are no longer publicly accessible.

The committee also reached another conclusion that has caused considerable debate in some circles, holding that it is ethical for a lawyer to advise clients to delete data from social media accounts as long as the lawyer retains copies of information that may be relevant to a future proceeding: “(A)lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence. The committee is of the opinion that if the lawyer does so, an appropriate record of the social media information or data must be preserved if the information or data is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding.”

Since this is only an advisory opinion, there’s a chance that this holding may be revised in the near future, so keep an eye out for the final opinion — especially given how much criticism has been mounted against the portion of the decision relating to advising clients to remove social media postings.

In another case, a federal court judge in the Eastern District of Louisiana raised concerns about an attorney’s perceived obfuscation in relation to a discovery request for his client’s social media account information. At issue in Crowe v. Marquette Transp. Co. Gulf-Inland, LLC, 2015 WL 254633 (E.D. La. Jan. 20, 2015) was whether the plaintiff, who alleged that he injured his knee while at work, had adequately complied with a discovery demand.

The defendant asked for “an unredacted, unedited digital copy of your entire Facebook page from the onset of your employment with Marquette until present.” In response to the demand, he replied that he “does not presently have a Facebook account.” It was later discovered that he did have a Facebook account, but that it had been deactivated just days after service of the defendant’s demands for discovery.

The defense then brought a motion to compel, which resulted in the order cited above. In the order, the judge chastised the plaintiff for his less than truthful response to the request for access to his Facebook account: “(T)he Court is troubled by Crowe’s refusal to produce any responsive documents on the basis of the statement that he did not ‘presently have a Facebook account.’ The records indicate that Crowe did not delete his account but deactivated it. It is readily apparent to any user who navigates to the page instructing how to deactivate an account that the two actions are different … Crowe’s efforts to avoid producing this material have unnecessarily delayed these proceedings and have wasted the time of his opponent and this Court.”

The court then ordered that he provide the defendant with his password and full access to the Facebook account along with printouts of 4,000 pages of his Facebook account data.So the lesson to be learned from these recent examples of how these issues are being addressed by both courts and ethics committees is that honesty is the best policy. Social media interactions are now a regular part of our day-to-day lives and this information is oftentimes relevant to litigation. Instead of treating digital evidence differently than you would other types, err on the side of caution, preserve all data and be forthright in your discovery response, lest you run the risk of spoliation sanctions or worse.

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